Making redundancies is an unpleasant, sensitive process with many added aspects to consider when you have affected employees who are on maternity leave.
Being on maternity leave does not make an employee exempt from redundancy. It does, however, grant them greater protection throughout the duration of their maternity leave, especially when considering whether there are any suitable alternative roles within the business.
The primary aim of the law providing maternity protection to mothers is to protect the wellbeing of the mother and their babies and minimise the challenges and disadvantages that working women encounter when having children.
Under no circumstances should a woman’s pregnancy or maternity leave be used as reason to make them redundant - this would be deemed to be discriminatory and unlawful. A proposed redundancy must always be based on a genuine business reason.
The right to adequate consultation is a fundamental right for all employees who will be affected by the redundancy process. You will need to consult any employees on maternity leave at the same time as consulting other affected employees, if they are at risk of redundancy. You must ensure that you give them as much notice as possible, invite them to meetings you are holding with other staff regarding the process. It is also good practice to see whether any alternative arrangements can be made in relation to meetings to discuss the matter, such as conducting them by Skype, FaceTime, or going to see the employee at their home if they are unable to come into the office.
Although it’s understandable you may not want to disturb your employee during maternity leave, especially with bad news, if you fail to do so, any resulting dismissal without prior consultation would be unfair.
Suitable alternative employment
If there are alternative positions available, you must offer these roles to any staff on maternity leave before they are offered to any other employees who have been placed at risk. They have the right of first refusal for any suitable alternative positions (suitability being defined by law as no worse than their previous job with regard to location, terms, conditions and status).
When offering an employee on maternity leave a different role, you must offer them the role outright, you cannot ask them to interview for the position.
If there are no suitable alternatives, you must follow a full redundancy process, continuing to look at whether there are any alternatives for them until their dismissal is confirmed and including them in the process so that they are not treated any less favourably than other employees involved in the process.
If you make an employee redundant during their maternity leave, you will still be liable for any Statutory Maternity Pay (SMP) they are entitled to, up to their full 39 week entitlement. This can continue to be paid through payroll, or can be paid as a lump sum payment, together with any notice and redundancy pay they are owed.
Author: Daniel Ayres
DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic. If specific advice is required in connection with any of the matters covered in this article, please speak to Gorvins directly.
Published on 25th August 2017
(Last updated 21st March 2018)